Case T-152/06

NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB

v

Commission of the European Communities

(Action for annulment – State aid – Regulation (EC) No 659/1999 – Complaint by a competitor – Letters from the Commission to a complainant – Existing aid – Non-actionable measure – Inadmissibility)

Summary of the Judgment

1.      Actions for annulment – Actionable measures – Measures challengeable by a complainant against State aid

(Art. 230 EC; Council Regulation No 659/1999, Arts 4, 13 and 20(2))

2.      State aid – Existing aid – Commission’s obligation to review existing aid – None

(Art. 88 EC; Council Regulation No 659/1999, Arts 4, 13, 17 to 19 and 20)

3.      State aid – Existing aid – Letter from the Commission to a complainant informing it of the categorisation of the aid complained of as existing aid –Inadmissibility of an action for annulment of that letter – Possibility of the complainant’s bringing an action before the national courts

(Art. 88(3) EC, second sentence)

1.      In the context of the review of State aid by the Commission, in order to assess whether a letter sent to a complainant in reply to his complaint constitutes an actionable measure, the Court of First Instance must determine, in the light of the substance of the contested measure, whether it constitutes a decision under Article 4 of Regulation No 659/1999 on the application of Article 88 EC or merely an informal communication, as provided for in the second sentence of Article 20(2) of that regulation. It is thus apparent from the procedure applicable to complaints concerning State aid, as laid down in Regulation No 659/1999 and, in particular, in Article 20(2) thereof, that while the Commission is under an obligation to examine without delay information regarding allegedly unlawful aid which is sent to it by a third party in a complaint, it is not required to adopt a decision under Article 4 of that regulation in response to each complaint. The obligation on the Commission to adopt a decision in response to a complaint arises only in the situation envisaged in Article 13 of Regulation No 659/1999. Under the second sentence of Article 20(2) of that regulation, the Commission need only inform the complainant by letter that there are insufficient grounds for taking a view on the case. The latter situation arises, in particular, where Article 13 of Regulation No 659/1999 does not apply because, in reality, the aid referred to in the complaint is not unlawful aid, but existing aid.

A letter from the Commission categorising as existing aid the measures complained of in a complaint lodged by a competing undertaking of the undertaking which received the aid does not produce binding legal effects such as to affect the interests of that complainant. It must be regarded as an informal communication, as provided for in the second sentence of Article 20(2) of Regulation No 659/1999, the content of which does not reflect a decision under Article 4 of that regulation and does not therefore constitute an actionable measure for the purposes of Article 230 EC.

(see paras 42-44, 68, 70)

2.      Within the framework of the competence conferred upon it to keep existing aid under constant review, a complainant cannot, by means of a complaint sent to the Commission, require the latter to assess the compatibility of such aid. If, following an initial assessment, the Commission finds that the complaint relates not to unlawful aid but to existing aid, it is under no obligation to address a decision under Article 4 of Regulation No 659/1999 on the application of Article 88 EC to the Member State concerned and cannot be compelled to apply the procedure provided for in Article 88(1) EC.

Where the Commission finds, in a letter sent to a complainant, that the aid complained of is existing aid and Article 13 of Regulation No 659/1999 – which relates to unlawful aid – is not applicable, the Commission is not able to adopt a decision under Article 4 of that regulation. Accordingly, in response to the complaint, the Commission can do no more than inform the complainant, pursuant to the second sentence of Article 20(2) of Regulation No 659/1999, that there are insufficient grounds for taking a view on the case. It would run counter to the general scheme of the State aid review procedure to hold that, where the Commission informs a complainant that its complaint concerns existing aid, it is necessarily adopting a decision under Article 4 of Regulation No 659/1999. Such an approach would mean that, where a complaint relating to existing aid is brought before the Commission, it is under an obligation to examine whether that aid is compatible with the common market. Pursuant to Article 88(1) EC, the initiative for implementing the procedure for keeping existing aid under constant review lies with the Commission alone.

(see paras 60-61, 64)

3.      The inadmissibility of an action for annulment of a letter sent by the Commission to a complainant in which the institution informs the complainant that the aid complained of is existing aid does not have the effect of depriving the complainant of the possibility of having the lawfulness of the aid in question reviewed by the courts. The national courts must ensure that all appropriate inferences are drawn, in accordance with their national law, from an infringement of the last sentence of Article 88(3) EC, as regards both the validity of measures giving effect to the aid and the recovery of financial support granted in disregard of that provision.

(see paras 71-72)